Delhi High Court - Orders
Sap Se vs Anoop Tech & Ors on 1 December, 2020
Author: Mukta Gupta
Bench: Mukta Gupta
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 528/2020
I.A.11267/2020 (under Order XXXIX Rule 1 and 2 CPC)
I.A.11268/2020 (under Order XI Rule 1 (4) Commercial Court Act)
I.A.11269/2020 (exemption)
SAP SE ...... Plaintiff
Represented by: Mr.Ranjan Narula, Advocate with
Ms.Payal Kalhan and Mr.Shashi
Ojha, Advocates.
versus
ANOOP TECH & ORS. ...... Defendant
Represented by: None.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
ORDER
% 01.12.2020 The hearing has been conducted through video conferencing. I.A.11269/2020 (exemption)
1. Exemption allowed subject to just exceptions.
2. Application is disposed of.
I.A.11268/2020 (under Order XI Rule 1 (4) Commercial Court Act)
1. Additional documents, if any be filed within thirty days.
2. Application is disposed of.
CS(COMM) 528/2020 I.A.11267/2020 (under Order XXXIX Rule 1 and 2 CPC)
1. Plaint be registered as a suit.
2. Issue summons in the suit and notice in the application to the defendant No.1 and defendant Nos. 3 to 5 on the plaintiff taking steps Signature Not Verified Digitally Signed By:JUSTICE CS(COMM) 528/2020 PageGUPTA MUKTA 1 of 5 Signing Date:01.12.2020 19:03:38 through Email, SMS, Whatsapp, Speed Post and Courier, returnable before the learned Joint Registrar for completion of service, pleadings and admission-denial of documents on 4th February, 2021.
3. Written statements to the suit and reply affidavits to the application along with the affidavits of admission-denial will be filed within thirty days. Replication and rejoinder affidavit along with the affidavit of admission- denial within three weeks thereafter.
4. List the suit and application before Court on 12th May, 2021.
5. In the present suit, the plaintiff claims that the plaintiff is the proprietor of SAP R/2 software and has received copyright registration for R/3 systems in USA in the year 1992. The plaintiff's Indian subsidiary i.e. SAP India Private Limited was incorporated on 14th March, 1996 whereafter, the plaintiff obtained registration for the mark 'SAP' under class 9 as a trademark.
6. Grievance of the plaintiff is that despite the trademark 'SAP' and the copyright in the software being registered in favour of the plaintiff and the material of the plaintiff being confidential in nature, the defendant No. 1 started its infringing activities which came to the notice of the plaintiff in May, 2020 when the plaintiff issued a cease and desist notice to the defendant on 27th May, 2020. The notice was responded by the defendant No. 1 vide its email dated 11th June, 2020, informing the plaintiff that it was in the process of taking down the infringing contents from its websites and sought additional time to complete the take down process. In August 2020, the website of the defendant No. 1 i.e. www.anooptech.net was not functional and showed the message 'site cannot be reached'. However, on 23rd September, 2020, the plaintiff again noticed the infringing material Signature Not Verified Digitally Signed By:JUSTICE CS(COMM) 528/2020 PageGUPTA MUKTA 2 of 5 Signing Date:01.12.2020 19:03:38 appearing on the website www.anooptech.net and the defendant No. 1 created another mirror website www.anooptech.com having same infringing contents and offering the plaintiff's SAP courses. Despite the plaintiff sending a letter on 6th October, 2020 to the defendant No.1 for its continued act of infringement of its contents in SAP courses and of its trademark, the defendant No. 1 continued to infringe the plaintiff's trademark and copyright in SAP trademark and SAP courses through its websites www.anooptech.net and www.anooptech.com. According to the plaintiff, even as on today's morning, the defendant No.1's websites through interacting programmes, provided the SAP courses by way of class rooms, live demos, course material and online classes to the students, as under:-
Signature Not Verified Digitally Signed By:JUSTICECS(COMM) 528/2020 PageGUPTA MUKTA 3 of 5 Signing Date:01.12.2020 19:03:38
7. Further, the defendant No. 1 is also advertizing and promoting SAP online training courses through social media accounts of Facebook, Twitter, Just Dial etc. to attract the potential students. The defendant No. 1 is advertizing and using plaintiff's SAP/ trademark and logo in its various advertisements on the platform, as under:-
8. Grievance of the plaintiff is not only that the defendant No. 1 is infringing its trademark, copyright as also violating the confidentiality of its programmes, the defendant No. 1 is representing to the students who take courses that a job pursuant to the courses is also assured, thereby, number of gullible are students falling in the trap of the defendant No.1.
Signature Not Verified Digitally Signed By:JUSTICECS(COMM) 528/2020 PageGUPTA MUKTA 4 of 5 Signing Date:01.12.2020 19:03:38
9. Considering the averments made in the plaint as also the documents filed therewith, this Court finds that the plaintiff has made out a prima facie case in its favour and in case no ex-parte ad-interim injunction is granted, the plaintiff would suffer an irreparable loss. The balance of convenience also lies in favour of the plaintiff.
10. Consequently, an ex-parte ad-interim injunction is granted in favour of the plaintiff and against the defendants in terms of prayer (a) of IA 11267/2020 till the next date of hearing before this Court. The defendant No. 1 is also restrained from putting up the infringing contents in relation to the plaintiff's trademarks and copyright on its websites www.anooptech.net and www.anooptech.com or any other website(s) created or on third party websites/platforms. The defendant No. 1 is further restrained in terms of prayer (c) of the application. The defendant No. 1 is directed to remove its listing/advertisements of the SAP courses in terms of prayer (f) in the application within 36 hours of the receipt of this order, failing which, the defendant Nos. 3, 4 and 5 are directed to take down/de-activate/disable the access to the websites and domain names as prayed in para (e) of the application on an intimation being given by the plaintiff within 72 hours of the said intimation.
11. Compliance under Order XXXIX Rule 3 CPC be done within one week.
12. Copy of the order be uploaded on the website of this Court.
MUKTA GUPTA, J.
DECEMBER 01, 2020 akb Signature Not Verified Digitally Signed By:JUSTICE CS(COMM) 528/2020 PageGUPTA MUKTA 5 of 5 Signing Date:01.12.2020 19:03:38